BROOKS 11. M'COMB.
inat, notwithstanding its full possession of information in that respect, it insisted upon, urged, and demanded the prosecution of the accused. Now, in this case the question is whether there was any such information communicated. to the railroad company; whether there was anything more than a doubt thrown upon what information had been received bafore; and whether, in the possession of such information as it had, the continuance of the prosecution was at its urgency and insistence. If you find for the plaintiff, the question of course arises, what is his measure of damages? and in respect to that the law is this: Whatever he may have paid out for counsel fees, for expenses in defending himself against the suit that was wrongfully brought against him, and whatever may be the value of the time that was consumed in that defense; and, beyond that, whatever damage may have been done to his reputation by the initiation and prosecution of this unjust charge,-are to be considered in determining the amount of his damages. Of course, so far as the amount of money he may have paid out jor expenses and counsel fees is concerned, that is a matter easy of calculation, as is also the value of his time. Those are matters of mathematical calculation. So far as the question of injury to his reputation-damages to his reputation-is concerned, there is r.a mathematical rule by which that can be determined. It is submitted to the good sense and fair judgment of the jury,-considering all the circumstances of the case, the man he is, his past life, his own character,-to determine as to how much he has been damaged by this unjust accusation.
BROOKS 'IJ. McCOMB.
(Oifoeuit Oourt, D. Kansas. March 25,1889.)
WILLB-FoRBIGN-RmCORDING-DoCTlUNE OF RELATION.
Compo Laws Kan. 1881, C. 117. § 29, provides that "no will sball be effectual to pass real or personal estate, unless Itsball bave been dUly admitted to probate, or recorded, as provided in this act. " Chapter 37, § 146a, provides that powers of sale conferred upon executors, etc., by foreign wills, shall, as to lands situated in Kansas, be as valid there as in the state where the will was made, "provided that at the time of such conveyance (under the power) a copy of such will shall have been recorded in the office of the probate court in the county in which any land so conveyed is situated. as anthorized by" chapter 117, § 24. Held, that where a foreign executor conveyed land in Kansas, under a power of sale in the will, before recording the will, but no rights of third persons intervened, the subsequent recording related back to the date of the conveyance, and made it valid.
At Law. Ejectment by Anna L. Brooks against John McComb. Hallowell &; Hume, for plaintiff. Campbell &; Dyer and SlU88 &; Stanley, for defendant.
. FOSTER, J. 'The plaintiff brings ber action of ejectment against said defendant to recover the possession of lots 34 and 36 on Waco street in
Waterman's additionto ili!e,city of Wichita" The factS out. of:whiehJhia conuoversy:aroseare briefty;asJbllows: William a.Brooks died in 1880., seismd in fee-simple ofthis'property.. Said 'Brooksleft as plaintiff,: and a minor child,.Walter L. Brooks. William H. Brooks died testate, and iIi hiswlllh.edevised the proplilrty in controversy, with other property,to hil3 minor'child, and, after naming his brother, James C. Brooks, and, in case he- declined to act, then Clarence D. Perry, to be tlieexecutor,of his will, he usesthefollowing language: ;'And I hereby give to my'executor, or whoever may settle my estate under tbis will, full power tosHI any part or parts of the real-estate herein devised as a- part of the residue of my estate to my son, Walter. either at public or privat,e, sale, and to give good and sufficient, deeds therefor,to the purchaser or purchasers, so that the latter will not ,answerable for the application olthe chase money, if in the opinion of the person or persons so settling my estate it shalli:le more convenient for the purpose of settling my estate. or for the pUrpose of arranging or settling the annuities herein given, and in case of said sales, the balance of the' proceeds, after paying my debts, legacies, and annuities, shall belong to, and go tO,my son, Walter. as a part of the residue of my estate." , At the time of his de'ath the testator's residence was in Cook'county, state of Illinois, and his will was duly probated in said county ill ary, 1881; and, James C.Btooks having renounced all claims to act as executor the will, letters. testanientary were duly issued out of the proba:t-e cot'trt of Cook county to Clarence D. Perry, nauled in s.aid will, who was also a citizen of Illinois. Afterwards, and on March 15, 1883, the said executor Perry, sold and conveyed the property in controversy to A. A. Hyde, a citizen of Wichita, for the consideration of $300. The executor's deed recites the making ofthe will, the power of sale therein given, the probating of thesamelapd the issue of letters testamentary to said Clarence D. Perry, etc., and then conveys all the right, title, and estate that the testator had in, said real estate at the time of his death. At the time this deed was made. the said will had not been recorded in the probate court of Sedgwick county, where said land was situated, but was filed and recorded on the 5th day ofApril thereafter. The defendant, McComb, has all the rights that Hyde took under the executor's deed, and for the purposes of this case the plaintiff has all the title of Walter L. Brooks. : There seems to be but one question in the case. Did the failure to J;ecord the will in the probate court of Sedgwick county before making the. deed by the executor, but recording the same several days afterwards, prevent any title to the land passing to Hyde, the grantee under the executor's deed? Section 24, c. 117, of the Laws of Kansas provides as follows: , ..Authenticated copies of wills, executed and proved according to the laws of any state or territory of the United States, relati:ve to any property in this state, may be admitted to record in the probate court of any county in this state, wllere any part of such property may be situilted; and such authenti, eatM oopies, so recorded, shaH -have the same validity as wills made in this state, i,n conformity with the. laws thereof. '" '" *"
Section. 29 reads as .follows: ' "No willsMl1 beeftectual to pass real or personal unless it been duly admitted to probate, or recorded, as provid,ed in this act." ' , Section J46a, C" 37, reads ,as follows: "Whenever in any will which heretofore has been, or hereafter shall be. executed and PJ;oved in any state or territory of the United States, power is given to the executor or administrator witb the wilIannexed to sell or convey real estate of the testato,r, any executor of such will or administrator with the will annexed of the estWte of the testator, duly appoiritlld and qualified in any state or territory of the United Statl's in which such will shall have been executed and proved, may sell and convey the real estate of the testator in this state in pursuance,of the power given in the will. as effectually, and to the same extent, ;is if letters testamllntary or of administration with the will annexed of the estate of the testator had been duly granted. to such executor or lldministrlltorin and under the provisions of the laws of this state, unless, at the time of such 'sale and conveyance, administl'ation upon the estate of the testator shall have been granted in this state: and prOVided, that at the time of SUch conveyance a copy of such will shall have been recorded in the office of thl( proba1iecourt in the inwhichany land so cOllveyed is situated, as authorized by section 24, c. 117, of the General Statutes." !tis apparent from the proviso to the foregoing section, 'as also from sections 24 and 29, that the executors deed did not' operate to'transfer the title prior to the recording of the will; and the question to be tennineu is whether under the rUle of law called "relation" the subsequent'recording made good title. "Relation" is'defined as a fiction of law'by which an act or instrument is from necessity and fodh'eadvancementofjustice, permitted to take, effect at a time anterior to its actual performanee or execution. Jackson v. Ramsay, 3 Cow. 75; Lande8v. Brant, 10 How. 373jGibson v. Chouteau, 13 Wall. 100. The doctrine is applied only tosubserve the ends of justice. Lynch v. Bernal; 9 WalL 325. The plaintiff insists that the doctrine of relation cannot be applied to or help the title, because the act of the executor prior to the recording:ofthe will was a nullity, and absolutely void. A'great number of decisions are cited to show that the exercise of a naked power must be strictly followed, or it is a nullity. So far as I have'heel'l.ltble to discover, these decisions were on the question of tile, exercise of power without ll,riy regard to the question of relation., and if this case was free bf that question,-that is, if the will had never been recorded, or the plaintiff's rights had intervened ,before its recording,-therewould be'but little doubtthlit as to her it must be declared a nullity, and conveyed no of relation cannot be title. lithe act was absolutely void, the applied. Jackson v. Ramsay, supra. I· know of no rule of law that would made the executor's deed lJ,bsolutely void. He derived his power llnder the terms of the' will itself. It is not claimed,that he exceed'e'd:that power, 'orexefcisedit in a manner different 'from the terms ofthe wilL He was fully qualified as executor. He hadvitllated no law. 'The most that can be:claimed for section 146 is thnt he 'Could not convey title to the land unleSs the will shall have been' recorded in the probate court. :His deed did ,not operate to pass the title 1 bec8iu.se 'the will ;W'aa Wet re:.
corded, although he had strictly complied with the power conferred on him by the testator,·. In Ex parte Fuller, 2 Story, 327, Judge STORY says, speaking.of the will: "The act of the testator gave it life; his death consummated the title." The probate of the will ascertains nothing but the original validity of the will as such. He further says, construing a statute of the state of Maine, verysimiIar to section 29 before cited: "The section only provides that no will shall be effectual to pass real estate, unless it shall have been duly proved, not until it shall nave been duly proved." In that case it was decided that the title of a devisee upon the probate of the will related back to the devisor's death. In Adams v. De Cook, 1 McAll. 253, the court held that a will before probate was not a nullity, but the fdundation of the title, and cites Judge STORY'S views in the F'uUcr Case with approval. The death transfers the property, and the will says where it shall go. .Comstock v. Adams, 23 Kan. 524. In Poole v. Fleeger, 11 Pet. 211, the plaintiff in ejectment claimed the land as the devisee of Rohrer, The will had been made and proved in Pennsylvania. The suit was commenced in Tennessee, without there being any registration of the will in that state. but the registration was made afterwards. The court says: "If the was rightfully Illade in Tennessee, it has relation backwards, and the time of the rt'gistration is wholly immaterial. whether before or after the institution of the suit. " In case of IlaU's Lessee v. Ashby, 9 Ohio, 99, the court decided that the registry of .a foreign will in Ohio was merely for the purpose of admittinga copy in evidence, and that the will took effect from the death of the testator, and not from the registry. In Woodbridge v. Banning, 14 Ohio St. 328, the court held that the estate did not pass to the devisee until probate of the will. This decision was based upon a statute similar to section 29 of the Kansas statute, and is undoubtedly correct; but the court in that case say nothing on the subject of relation. It is not in this case that the title passed until the will was recorded. In the case of Woodbridge v. Banning a suit was brought by some of the heirs of the testator against other heirs for a partition of the real estate, ignoring the will. One of the heirs, who was a devisee under the will, and defendant in the partition suit, set up in his answer the making of the will, that it had been spoliated, and a suit pending by him for its restoration. Of course the will had not been probated, and he had no available title under it which he could assert until it was probated. Hence it availed him nothing as a defense to the suit for'partition; and it stands to reason that his rights under the will could not have been ad. judicated in that suit. Afterwards the will was established and probated, and the court held that the devisee was not precluded by the record in the partition suit from asserting his rights under the will against the other heirs. It would have been manifestly unjust to have applied the doctrine of relation to make that record a bar against him, when he had no day in court, and no opportunity to assert his title under the will, which title had afterwards been perfected and made available by the restoration and probate of the will. In Evans v. Andera01&, 15 Ohio St.
CHICAGO & N. W. RY. CO.
324, the court use these words: "The probate of the will does 'not strengthen the title, but gives the will effect il.fl evidence and makes it available." In Riclwrds v. Pierce, 44 Mich. 444, 7 N. W. Rep. 54, suit was brought in ejectment by the grantee or devisee. The will was made and probated in New York, hut not probated in Michigan until after suit brought. The court held, under a statute similar to section 29 of the Kansas statute, that the suit could be maintained, and that the probate related back to the commencement of the suit. The case of Brazier v. Hudson, 8 8im. 67, is cited to the effect that subsequent probate validates acts that would he valid if probate had preceded the acts. The court further say that the probate merely furnished the means ofestablishing by record evidence the validity of an existing right, and ,that for every valuable purpose touching the existence and transfer of title the probate was retroactive. In Crusoe v. Butler, 36 Miss. 150, the will in controversy was similar to the one in this case, and the statute of Mississippi silllilar to the Kansas statute. The court say the power comes from the will, and the probate was merely to authenticate the evidence hy which the power was established, and the subsequent probate of the will made valid the title under a deed made prior thereto. This case is a strong one, anJ the subject is fully discussed on pages 170 and 171. The case of Wilson v. Wilson, 54 Mo. 213, is another case directly in point. The court holds that the will giving power of sale vests the title in the executor at the death of the testator, and the executor's deed made before the probate of the will is a good conveyance, provided the will be subsequently probated. In this case the will was probated two years after the deed was made. Many other cases might be cited to the same import, but it seems to me these are sufficient. Judgment must go for defendant.
SMITH f1. CHICAGO
& N. W. Ry.
(Oircuit Oourt, S. D.
In the taxation of costs in the federal courts. the clerk has no authority to allow mileage for witnesses living at 8 distance greater than 100 miles, unless the court shall, for good cause shown, otherwise direct.
TUATION-::MILEAGE OF WITNESSES.
At Law. On motion to retax costs. J. Lyman and J. G. Bull, for plaintiff. Hubbard & Dawley, for defendant. Before 8HIRAS and LOVE, JJ. 8HIRAS, J. In the above action a judgment was rendered at a previous term, assessing the costs against the defendant. In the taxation thereof the clerk allowed mileage for several witnesses summoned on behalf of plaintiff, for distances in excess of 100 miles, and the present v.38F .no.4-21